Citation Nr: 1125079 Decision Date: 07/01/11 Archive Date: 07/14/11 DOCKET NO. 09-38 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased evaluation for dysthymic disorder, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability prior to March 3, 2011. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from January 2009 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). In September 2008, the Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Subsequently, a March 2011 rating decision granted 100 percent disability ratings for the Veteran's small cell lung cancer and metastatic disease of the liver and bone, effective March 3, 2011. As such, the issue of entitlement to TDIU is moot as of March 3, 2011, the date 100 percent evaluations for the above service-connected disabilities were assigned. See Green v. West, 11 Vet. App. 472, 474 (1998) (noting that a veteran is not entitled to TDIU where he is already assigned a 100 percent schedular evaluation for a service-connected disability); VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (holding that a TDIU claim may not be considered when a 100 percent schedular evaluation is already in effect for another service-connected disability). Accordingly, the Veteran's TDIU claim will be addressed herein only with respect to the time period prior to March 3, 2011. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In May 2011, prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal of the issue of entitlement to an increased evaluation for dysthymic disorder, currently evaluated as 50 percent disabling. 2. Prior to March 3, 2011, the evidence of record demonstrates that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an increased evaluation for dysthymic disorder, currently evaluated as 50 percent disabling, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The criteria for TDIU prior to March 3, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a January 2009 rating decision, the RO denied an increased evaluation in excess of 30 percent for the Veteran's dysthymic disorder. In February 2009, the Veteran filed a timely notice of disagreement with regard to the assigned evaluation, and perfected his appeal in October 2009. By a September 2009 rating decision, the RO increased the disability evaluation to 50 percent effective May 29, 2008. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). However, at the May 2011 hearing before the Board, the Veteran withdrew his appeal regarding this issue. With no allegation of error of fact or law remaining before the Board, the Board does not have jurisdiction to review the appeal and it is dismissed. Claim on Appeal As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. TDIU is warranted when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to March 3, 2011, service connection was in effect for pneumoconiosis, rated as 30 percent disabling; and dysthymic disorder associated with pneumoconiosis, rated as 50 percent disabling. The Veteran's combined disability rating was 70 percent. See 38 C.F.R. § 4.26 (2010). A September 2006 decision from the Railroad Retirement Board found that the Veteran's impairments had prevented him from performing regular employment or substantial gainful activity since September 1, 2004. C.M., a friend who served with the Veteran, stated in February 2008, that he observed the Veteran's shortness of breath, premonition with death and lung cancer, and overall degeneration of health. G.R., a former employee who worked with the Veteran for many years, stated in February 2008 that the Veteran had bouts of depression, fatigue, and deficiencies in his ability to operate his plant and that he seldom showed up to check on the operation of the plant. In a March 2008 statement, the Veteran's wife reported that the Veteran's physical and mental symptoms affected his way of life in that he no longer enjoyed the activities he used to and that he had trouble breathing when walking or trying to do yard work. She also reported that the Veteran had turned over the operation of his business to her and their son and stayed very depressed about his occupational and social impairments. During a July 2008 VA psychiatric examination, the Veteran reported that he started to stay away from work due to his "moodiness," going from a 40 hour work week to approximately 15 hours. He also stated that he had problems overseeing parts of the operation as the smoke aggravated his breathing problems. He also described lacking motivation to follow up on some aspects of his business and that he quit working in 2004 giving the business to his wife and son. The Veteran reported that his moodiness, irritability, and lack of motivation interfered with his productivity, efficiency, and reliability at work. The July 2008 VA examiner noted, however, that these were also apparently affected by the Veteran's physical condition, breathing problems, in the smoky areas and that emotional issues by themselves limited, but did not prohibit his productivity, efficiency, or reliability at work and would not interfere with his ability to gain or maintain gainful employment. A January 2009 VA medical opinion stated that a July 2008 pulmonary function test indicated normal lung function as there was no evidence of airflow limitation and the lung volumes and diffusion capacity of the lung were within normal limits. The examiner opined that the Veteran was not unemployable based solely on his service-connected lung condition. Also in January 2009, a VA psychologist provided an opinion that the Veteran was not incapable of functioning in all occupational environments solely due to his service connected dysthymic disorder. In February 2009, C.M. argued that the Veteran's greatest problems were his lungs and depression and that the Veteran could not do any remedial type work. In an April 2009 VA examination, the Veteran reported that his wife and son continued to be the most involved in the day to day management of the barbecue business. The Veteran estimated out of a 40 hour week he was at the business about 8 hours. The VA examiner noted that the Veteran's occupational activity continued to be limited at a similar level of functioning to what was described in the July 2008 VA examination. The examiner also stated that there was occasional decrease in work efficiency and decreased level of psychosocial functioning due to mental disorder signs and symptoms. I.R., a meat inspector at the Veteran's business, stated in April 2009, that he experienced difficulty communicating with the Veteran on the operation of the daily inspection of the plant, which had progressed to the point that he could not deal with the Veteran. He noticed on occasions that the Veteran had panic attacks and could not keep up with the changes in the operation of the plant. In an April 2009 statement, the Veteran's wife reported that the Veteran had problems in communication and his behavior had cost them several business accounts. She also reported that the Veteran had trouble coping with daily work activities. In a May 2010 letter, K.C. M.D. stated that the Veteran complained of shortness of breath and the lung problems increased based on a pulmonary function test performed in the same month. Dr. C. prescribed oxygen for home use. In a May 2010 VA respiratory examination report, the examiner questioned the reliability of the May 2010 pulmonary function test noting that the Veteran had difficult time performing the test. The impression was that the overall pulmonary function test was within normal limits. The examiner opined that the Veteran could manage a barbecue restaurant/store if he needed and that based solely on his service-connected disability the Veteran was employable as a restaurant owner. In a May 2010 VA psychiatric examination, the Veteran stated that he had not been gainfully employed since 2005. The examiner stated that the Veteran appeared to be visiting the business he used to own at least three times a week, although he was not officially working. The examiner opined that the Veteran was not incapable for functioning in all occupational environments solely due to his service-connected mental disorder. In September 2010, Dr. C. stated that the Veteran had a difficult time performing the pulmonary function test due to severe dyspnea from his chronic obstructive pulmonary disease and not due to any lack of effort by the Veteran. In an October 2010 letter, Dr. C. opined that the Veteran's respiratory condition was "totally disabling" and the Veteran was unable to secure gainful employment. In a January 2011 letter, Dr. C. stated that the Veteran was found to have small cell lung cancer with extensive metastatic disease of the liver and bone and was being treated with high-dose chemotherapy by an oncologist. Dr. C. stated that the Veteran was prescribed home use oxygen for his severe breathing problem, which was denied by VA. At a May 2011 hearing before the Board, the Veteran testified that since 2004 he could no longer work due to his deteriorating health, specifically due to shortness of breath and mental distress from not being able to handle his job. The Veteran's son testified that the Veteran did not have an active role in the business after 2004 to 2005 as it was physically impossible for the Veteran to work due to lack of stamina and the Veteran experienced a great deal of emotional difficulties. The Veteran's representative argued that while VA examinations were obtained as to the effects of the Veteran's respective service-connected disabilities on his employability none of the VA opinions considered to the combined effects of all service-connected disabilities on his occupational functioning. The representative also questioned the credibility of the VA May 2010 respiratory examination as to the finding of normal overall pulmonary function test as it was not consistent with the Veteran's severe breathing problem and his diagnosis of lung cancer in January 2011. As noted above, TDIU is warranted if the Veteran is unable to follow a substantially gainful occupation due his service-connected disabilities. 38 C.F.R. § 3.340(a)(1). In this case, applying the doctrine of reasonable doubt, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities. Specifically, the September 2006 decision by the Railroad Retirement Board found "[the Veteran's] impairments [have] prevented him from performing regular employment or substantial gainful activity" since September 1, 2004. In the February 2009 statement, C.M. indicated that he represented the Veteran at the disability determination hearing and argued that the Veteran's greatest problems were his lungs and depression. While the Railroad Retirement Board's favorable decision is not dispositive or binding on VA, the Board places significant probative value to this decision in review of the other evidence of record presented in this case. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The record includes credible lay statements by the Veteran, his wife and son, his friend C.M., his former employee, G.R., and I.R., testifying to the fact that the Veteran was unable to perform the daily operation of his own business due to his breathing problem and emotional distress since 2004. In addition, in the September 2010 letter, the Veteran's private physician, K.C. M.D. opined that the Veteran's respiratory condition was "totally disabling" and that the Veteran was unable to secure gainful employment. Considering the lay statements, as well as the medical evidence of record regarding the severe functional impairments collectively exhibited by his service-connected lung cancer and dysthymic disorder, and with application of the benefit of the doubt doctrine, the Board finds that the Veteran was unable to follow a substantially gainful occupation due to his service-connected disabilities prior to March 3, 2011. Accordingly, a total disability rating for compensation purposes based on individual unemployability prior to March 3, 2011 is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A total disability rating based upon individual unemployability prior to March 3, 2011 is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs